Feijoo v. Massachusetts Department of Corrections et al

Filing 8

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b); Plaintiff's Motion for Appoin tment of Pro Bono Counsel(Docket No. 6) is ALLOWED; the Pro Bono Coordinators shall appoint counsel pursuant to the District Court's Pro Bono Plan; Within 30 days of the date of appointment of pro bono counsel, appointed counsel shall file an am ended complaint pursuant to Fed. R. Civ. P. 8 curing the pleading deficiencies in the original complaint, and appointed counsel shall request summonses to issue at that time; Plaintiff's Motion to Waive Cost of Service by Sheriff or Marshal (Docket No. 3) is ALLOWED to the extent that the United States Marshal Service shall effect service of process after summonses issue, and as directed by plaintiff, with all costs of service to be advanced by the UnitedStates Marshal Service. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HUMBERTO FEIJOO,
Plaintiff,
v.
DEPARTMENT OF CORRECTION, ET AL.,
Defendants.

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C.A. No.

13-11432-PBS

MEMORANDUM AND ORDER
June 17, 2013
SARIS, C.D.J.
I.

Introduction

On June 6, 2013, plaintiff Humberto Feijoo (“Feijoo”), a
prisoner at MCI Shirley serving a life sentence, filed a selfprepared complaint alleging, inter alia, violations of 42 U.S.C.
§ 1983 based on the Eighth Amendment, and violations of the
Americans With Disabilities Act (“ADA”).1

Feijoo names as

Defendants: (1) Luis Spencer (“Spencer”), Commissioner of the
Massachusetts Department of Correction (“DOC”); (2) Kelley Ryan,
Superintendent of MCI Shirley Medium (“Ryan”); (3) Karen DiNardo
(DiNardo”), the Deputy Superintendent of MCI Shirley Medium; and
1

Feijoo is a frequent filer of civil actions in this
Court. See Feijoo v. Massachusetts Department of Public Safety,
et al., Civil Action No. 12-11453-GAO; Feijoo v. Massachusetts
Department of Correction, et al., Civil Action No. 10-11951-DJC;
Feijoo v. Massachusetts Department of Correction, et al., Civil
Action No. 06-12226-GAO; Feijoo, et al. v. Commonwealth of
Massachusetts, et al., Civil Action No. 97-10475-RGS; Langton, et
al. v. Dubois, et al., Civil Action No. 92-40017-NMG. As noted,
infra, pro bono counsel has been appointed for Feijoo in
connection with three prior lawsuits.

(4) Dr. Maria Angelis (“Dr. Angelis”), the Medical Director for
UMass Correctional Health Services.

In the caption of his

Complaint, he names the DOC as a defendant as well; however, the
body of the Complaint fails to set forth any allegations of
direct liability of the DOC, and no specific request for relief
is asserted against the DOC.
Feijoo alleges that since May 5, 2000, he has been housed at
the MCI Shirley Infirmary (except for a short time when he was
housed at Bridgewater State Hospital due to overcrowding at MCI
Shirley).

He suffers from multiple sclerosis and is confined to

a wheelchair or bed.

He has mobility only as a result of the

acquisition of an electric wheelchair.

Feijoo alleges that the

DOC has placed him in the Infirmary due to his need for a hoyer
lift to get him in and out of bed for the toilet and shower
chair.

He is on a regular diet, but suffers from diabetes and

liver failure.

He undergoes kidney dialysis three times a week.

He also suffers from anemia and receives blood transfusions as
needed.
Feijoo’s complaint challenges several conditions of
confinement.

These include the inability to work in the prison,2

2

Feijoo alleges that he is being denied the privilege to
work and earn good time credit because DiNardo claims that he is
not medically cleared to work. He contends this reasoning is
belied by Dr. Angelis’s claim that she never denied any request
for Feijoo to be medically cleared. Instead, she claims it would
be good for Feijoo’s mental state for him to be allowed to work.
Further, he contends that DiNardo is not a trained medical person
2

denial of access to a satellite law library,2 denial of access to
weekly religious services and Bible study, denial of access to
the fellowship of higher functioning inmates (because the other
inmates in the Infirmary suffer from dementia or Altzheimers),
and denial of special food items such as eclairs, peanut butter,
jelly crackers, and cheese sticks, simply because he is housed in
the Infirmary.

He contends the DOC has interposed the excuse

that the items are not available because inmates are allergic to
certain items or certain items are a choking hazard and unsafe.
Feijoo claims that such excuse is not legitimate.

He contends

that as a result, the defendants refusal to make those food items
available to him is discriminatory.

He further claims that he is

in the Infirmary solely because of his disability and not as a
result of segregation, yet he is denied access to all benefits
enjoyed by prisoners housed in the general population, including:
(1) visitation with family in a general area where food could be
purchased from vending machines; (2) being isolated; and (3)
being denied certain canteen items.

As an additional matter,

Feijoo alleges the DOC, through its employees, have violated his

and had no right to review Feijoo’s medical records.
2

Feijoo complains that he is being denied access to a
law library satellite computer since the installation was never
completed in the Infirmary. On several occasions, he asked
DiNardo for permission to go to the ADL unit to use the satellite
hook up there because the correctional officer would not allow
him access without written permission.
3

right to medical treatment by interfering in the recommendations
made by doctors who are contracted with the DOC.
Feijoo seeks an injunction enjoining the defendants from
retaliating against him for filing this action, and from
restricting him from any program or from obtaining special treats
in the main chow hall.

He also seeks compensatory and punitive

damages from each defendant.
Along with the Complaint, Feijoo filed a Motion for Leave to
Proceed in forma pauperis (Docket No. 2), a Motion to Waive Cost
of Service by Sheriff or Marshal (Docket No. 3), a Notice of
Intent (Docket No. 4), and a Motion for Appointment of Counsel
(Docket No. 6).
In the Notice of Intent, Feijoo claims that the defendants’
refusal to modify their policies to accommodate an inmate house
in the Infirmary merely because of his disabilities (such as
making certain food items available) denies him privileges that
are afforded to inmates in the general population.

Additionally,

he alleges that he has been forced to accept medical treatment at
the Lemuel Shattuck Hospital against his will.

He states he has

no objection to treatment at another hospital, but has a suit
against surgeons at this hospital.

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II.
A.

Discussion

The Motion for Leave to Proceed In Forma Pauperis
A review of Feijoo’s financial disclosures and prison

account statement reveals that he lacks sufficient funds to pay
the filing fee for this civil action.

Accordingly, his Motion

for Leave to Proceed in forma pauperis (Docket No. 2) will be
ALLOWED.
However, because Feijoo is a prisoner, he is obligated to
make payments toward the $350.00 filing fee, pursuant to the
Prison Litigation Reform Act.
pauperis statute).
1.

See 28 U.S.C. § 1915 (the in forma

Accordingly, it is hereby Ordered that:

Feijoo is assessed

an initial partial filing fee

of $56.59, pursuant to 28 U.S.C. § 1915(b)(1)(B);3
2.

The remainder of the fee $293.41 is to be assessed
and collected in accordance with 28 U.S.C.
§ 1915(b)(2).

This assessment is made apart from any other assessments

3

The initial partial assessment represents 20% of the
average monthly balance in Feijoo’s prison account for the sixmonth period preceding the filing of the complaint, as set forth
in the prison account statement calculated by the Treasurer’s
Office at MCI Shirley. This assessment is made without prejudice
to Feijoo seeking reconsideration using some other certified
account information data under the formula set forth in 28 U.S.C.
§ 1915(b). Moreover, this assessment is made notwithstanding
that Feijoo may not have sufficient funds in his account to pay
the initial partial assessment. Under the in forma pauperis
statute, assessment is made at the time of filing of the
complaint, but collection of the fee is made when funds exist.
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made in other civil actions filed by Feijoo; however, for
purposes of clarification for crediting any funds received from
Feijoo, this Court intends that any funds received from his
prison account first be applied to any prior Order of a Court
assessing a filing fee pursuant to 28 U.S.C. § 1915.
B.

Screening of the Complaint
Because Feijoo is a prisoner, he is subject to the

provisions of the Prison Litigation Reform Act (“PLRA”), Title
VIII of Pub. L. 104-134, 110 Stat. 1321-1375 (1996).

The PLRA

enacted several provisions which grant this Court the authority
to screen and dismiss prisoner complaints.

See 28 U.S.C. § 1915

(proceedings in forma pauperis); 28 U.S.C. § 1915A (screening of
suits against governmental officers and entities).
Section 1915 authorizes federal courts to dismiss actions in
which a plaintiff seeks to proceed without prepayment of fees if
the action lacks an arguable basis either in law or in fact,
Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action
fails to state a claim upon which relief may be granted or seeks
monetary relief against a defendant who is immune from such
relief.

See 28 U.S.C. § 1915(e)(2)(ii) and (iii).

In forma

pauperis complaints may be dismissed sua sponte and without
notice under § 1915 if the claim is based on an indisputably
meritless legal theory or factual allegations that are clearly
baseless.

Neitzke, 490 U.S. at 327-328;

6

Denton v. Hernandez,

504 U.S. 25, 32-33 (1992).
Section 1915A also authorizes the Court to review prisoner
complaints in civil actions in which a prisoner seeks redress
from a governmental entity, or officers or employees of a
governmental entity, and to dismiss the action regardless of
whether or not the plaintiff has paid the filing fee, if the
complaint lacks an arguable basis in law or fact, fails to state
a claim, or seeks relief from a defendant immune from such
relief.

28 U.S.C. § 1915A.

In connection with the preliminary screening, Feijoo’s pro
se complaint is construed generously.

Hughes v. Rowe, 449 U.S.

5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972);
Instituto de Educacion Universal Corp. v. U.S. Dept. of
Education, 209 F.3d 18, 23 (1st Cir. 2000).

However, even under

a broad reading, his claims are subject to dismissal in whole or
part, for the reasons set forth below.
C.

Failure to Compy With Fed. R. Civ. P. 8
Rule 8 of the Federal Rules of Civil Procedure provides, in

relevant part, that “[a] pleading that states a claim for relief
must contain ... a short and plain statement of the claim showing
that the pleader is entitled to relief ....”
8(a)(2).

Fed. R. Civ. P.

The statement must “give the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it
rests.”

Phelps v. Local 0222, No. 09-11218, 2010 WL 3342031, at

7

*5 (D. Mass. 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S.
506, 512 (quotations and citations omitted)).

In addition, the

pleadings “must afford the defendants a meaningful opportunity to
mount a defense.”

Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119,

123 (1st Cir. 2004)(internal punctuation and additional citations
omitted)).

At a minimum, “the complaint should at least set

forth minimal facts as to who did what to whom, when, where, and
why.”

Id. (quotation omitted).

While the “First Circuit holds a

pro se litigant to a standard of pleading less stringent than
that for lawyers,” “this cannot be taken to mean that pro se
complaints are held to no standard at all.”

Green v.

Massachusetts, 108 F.R.D. 217, 218 (D. Mass. 1985).

Thus, “the

requirements of Rule 8(a)(2) are minimal – but minimal
requirements are not tantamount to nonexistent requirements.”
Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61,
68 (1st Cir. 2004) (internal quotation omitted).
Further, under Rule 8, a plaintiff must plead more than a
mere allegation that the defendant(s) has harmed him [or her].
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (detailed factual
allegations are not required under Rule 8, but a complaint
“demands more than an unadorned, the defendant-unlawfully
-harmed-me accusation” (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).

See Chiang v. Skeirik, 582 F.3d 238,

244 (1st Cir. 2009) (“Threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not
suffice.”)(internal citation and quotation marks omitted).
Here, Feijoo’s complaint materially fails to comply with
Rule 8.

Apart from defendant DiNardo, Feijoo has not set forth

plausible claims that are discernible.

His complaint is replete

with a number of general grievances asserted against all of the
defendants, but he does not state the “who, what, where, when”
with respect to these claims.

While he submitted copies of

grievances filed, this does not suffice to set forth his claims
under Rule 8.

As an additional matter, he presents no claim

against defendant Dr. Angelis for any direct actions or inactions
taken by her.

He simply seeks to hold her liable as the Medical

Director, but does not set forth any alleged wrongdoing by her.
Indeed, his complaint alleges that she actually supported his
claim to be able to work by making a statement that she never
denied any request for Feijoo to be medically cleared; instead,
she claimed it would be good for Feijoo’s mental state for him to
be allowed to work.
Next, Feijoo’s claim that he is being treated against his
will at Lemuel Shattuck Hospital also does not set forth
plausible Eighth Amendment claims under § 1983, as no factual
underpinnings are included.

Courts consistently have refused to

create constitutional claims out of disagreements between
prisoners and doctors about the proper course of a prisoner’s

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medical treatment or to conclude that simple medical malpractice
rises to the level of cruel and unusual punishment.

See Estelle

v. Gamble, 429 U.S. 97, 106 (1976); DesRosiers v. Moran, 949 F.2d
15, 19 (1st Cir. 1991)(same).

Only “deliberate indifference” to

the serious medical needs of prisoners violates the Eighth
Amendment.

Estelle, 429 U.S. at 106.

Deliberate indifference is

“conduct that offends evolving standards of decency in a
civilized society.”
omitted).

DesRosiers, 949 F.2d at 18 (citations

Here, Feijoo has failed to allege sufficiently facts

demonstrating that any of the named defendants have been
“deliberately indifferent”

to a serious medical need.

Deliberate indifference may be “manifested by prison doctors in
their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or
intentionally interfering with treatment once prescribed.”
Estelle, 429 U.S. at 104-05.

Apart from the bald assertion that

the defendants refuse to permit him to dictate where he has
medical treatment, as pled, his allegations have no
constitutional implications.
Finally, Feijoo’s § 1983 claims against the DOC are based
solely on the actions of employees, agents, or officials of the
DOC and not on any direct action.

Similarly, his claims against

Spencer, Ryan, and Dr. Angelis also appear to be based solely on
their role as supervisory officials, and not on any direct action

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or inaction taken by them.

As pled, Feijoo fails to state

§ 1983 claims against these defendants, because there is no
respondeat superior liability under § 1983.

Capozzi v.

Department of Transp., 135 F. Supp. 2d 87, 98 (D. Mass. 2001)
(citing Ruiz Rivera v. Riley, 209 F.3d 24 (1st Cir. 2000)).

“It

is well-established that ‘only those individuals who participated
in the conduct that deprived the plaintiff of his rights can be
held liable’” under § 1983.

Velez-Rivera v. Agosto-Alicea, 437

F.3d 145, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo,
414 F.3d 124, 129 (1st Cir. 2005)).

“In § 1983 cases,

‘supervisors are not automatically liable for the misconduct of
those under their command.

A plaintiff must show an affirmative

link between the subordinate [employee] and the supervisor,
whether through direct participation or through conduct that
amounts to condonation or tacit authorization.’”

Id. (quoting

Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)).

See Pinto

v. Nettleship, 737 F.2d 130, 132 (1st Cir. 1984) (no respondeat
superior liability under § 1983; liability can only be imposed
upon officials who were involved personally in the deprivation of
constitutional rights).
In sum, this action cannot proceed as pled because of the
various legal impediments noted above.

In light of this, the

Court considers whether appointment of pro bono counsel is

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justified in this case.4
D.

The Motion for Appointment of Counsel
Under 28 U.S.C. § 1915(e)(1), the Court “may request an

attorney to represent any person unable to afford counsel.” 28
U.S.C. § 1915(e)(1); however, a civil plaintiff lacks a
constitutional right to free counsel.
F.2d 15, 23 (1st Cir. 1991).

DesRosiers v. Moran, 949

In order to qualify for appointment

of counsel, a party must be indigent and exceptional
circumstances must exist such that denial of counsel will result
in fundamental unfairness impinging on the party’s due process
rights.

Id.

To determine whether exceptional circumstances

sufficient to warrant the appointment of counsel are present in a
case, the Court must examine the total situation, focusing on the
merits of the case, the complexity of the legal issues, and the
litigant’s ability to represent him or herself.

Id. at 24.

Here, the Court is cognizant that pro bono counsel has been
appointed for Feijoo in connection with his past lawsuits.

In

Civil Action No. 06-12226-GAO, Attorney Stanley D. Helinsky, Esq.
was appointed.

That suit involved an ADA action where Feijoo

asserted many of the claims raised in this action.

4

These

In light of the discussion herein, this Court need not
address application of the Prison Litigation Reform Act, 42
U.S.C. § 1997e(e) providing that “no federal action may be
brought by a prisoner .... for mental or emotional injury
suffered while in custody, without a prior showing of physical
injury.” Id.
12

included the inability to earn good time credit, the inability to
participate in educational and work opportunities, the inability
to attend church and religious programs, the inability to access
the gym and recreation room; the inability to access the law
library, the inability to socialize with other inmates as the
general population does; and inability to access the visiting
room.

His primary claim, however, was a challenge to the denial

of the use of an electric power wheelchair, and an objection to
the use of other inmates to push a non-electric wheelchair,
contending it was unsafe and against regulations.
In Civil Action No. 10-11951-DJC, Attorney James Heggie,
Esq. was appointed to represent Feijoo.

Again, Feijoo, while

imprisoned at Bridgewater State Hospital, asserted challenges to
his conditions of confinement, claiming that, inter alia, he was
denied access to services and benefits available to non-disabled
persons, including the ability socialize with inmates, the
inability to use the gyn, the inability to purchase beverages
containing caffeine.
Finally, in Civil Action No. 12-11453-GAO, Attorney Harold
W. Potter, Jr. was appointed as pro bono counsel for Feijoo.
That action involved an allegation that the DOC defendants failed
to comply with the terms of a May 16, 2000 Settlement Agreement
between Feijoo and the DOC with respect to damages and repairs to
his privately-owned electric wheelchair.

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Given this litigation history and the fact that Feijoo’s
mobility is substantially impaired due to his medical conditions,
this Court finds that there are exceptional circumstances
presented warranting the appointment of pro bono counsel.
Accordingly, this Court will GRANT Feijoo’s Motion for
Appointment of pro bono counsel.

The matter will be referred to

this Court’s Pro Bono Coordinators to obtain counsel for Feijoo
pursuant to this Court’s Pro Bono Plan.

Within 30 days after pro

bono counsel has been appointed, counsel shall file an “amended
complaint” curing the Rule 8 pleading deficiencies of the
original, and counsel shall request the issuance of summonses at
that time.
E.

The Motion to Waive Cost of Service by Sheriff or Marshal
In light of the above, no summonses shall issue at this

time.

Once appointed counsel files an amended complaint and

requests the issuance of summonses, then the United States
Marshal Service shall effect service as directed by the
plaintiff, and shall advance the costs of service.
Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the
plaintiff shall have 120 days from the date of issuance of the
summonses to complete service.
Accordingly, Feijoo’s Motion to Waive Cost of Service by
Sheriff or Marshal (Docket No. 3) will be ALLOWED to the extent
that the United States Marshal Service shall effect service of

14

process after summonses issue, and as directed by plaintiff, with
all costs of service to be advanced by the United States Marshal
Service.
III.

Conclusion

Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis
(Docket No. 2) is ALLOWED and the filing fee is assessed
pursuant to 28 U.S.C. § 1915(b);

2.

Plaintiff’s Motion for Appointment of Pro Bono Counsel
(Docket No. 6) is ALLOWED; the Pro Bono Coordinators shall
appoint counsel pursuant to the District Court’s Pro Bono
Plan;

3.

Within 30 days of the date of appointment of pro bono
counsel, appointed counsel shall file an amended complaint
pursuant to Fed. R. Civ. P. 8 curing the pleading
deficiencies in the original complaint, and appointed
counsel shall request summonses to issue at that time;

4.

Plaintiff’s Motion to Waive Cost of Service by Sheriff or
Marshal (Docket No. 3) is ALLOWED to the extent that the
United States Marshal Service shall effect service of
process after summonses issue, and as directed by plaintiff,
with all costs of service to be advanced by the United
States Marshal Service.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF, UNITED STATES DISTRICT JUDGE

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